Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO 

 1 FLRA No. 105
                                            AUGUST 30, 1979
 
 MR. ARNOLD H. ABRONS
 SACHS AND ABRONS
 SUITE 220
 5 KOGER EXECUTIVE CENTER
 NORFOLK, VIRGINIA 23502
 
                 RE:  NORFOLK NAVAL SHIPYARD AND TIDEWATER VIRGINIA
                      FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO                 
                      (HARKLESS, ARBITRATOR), FLRC No. 78A-166
 
 DEAR MR. ABRONS:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE GRIEVANTS
 WERE NOT GIVEN ENVIRONMENTAL PAY FOR PERFORMING CERTAIN SPRAY PAINTING.
 THE GRIEVANCES WERE ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUE BEFORE HIM TO BE:
 
    (W)HETHER THE PAINTERS EMPLOYED TO PAINT SHIPS IN DRYDOCK AT THE
 SHIPYARD ARE ENTITLED TO
 
    RECEIVE "ENVIRONMENTAL PAY," MORE COMMONLY CALLED "DIRTY MONEY,"
 BECAUSE OF THE CONDITIONS
 
    UNDER WHICH THEY WORK WHEN SPRAY PAINTING.  /1/
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR STATED THAT THE
 AGREEMENT REQUIRES, AS A PRECONDITION OF RECEIVING THE WAGE
 DIFFERENTIAL, THAT THE EMPLOYEE BE "(P)ERFORMING WORK WHICH SUBJECTS THE
 EMPLOYEE TO SOIL OF BODY OR CLOTHING:  (1) BEYOND THAT NORMALLY TO BE
 EXPECTED IN PERFORMING DUTIES OF THE CLASSIFICATION . . ." HE NOTED THAT
 THE JOB DESCRIPTION FOR THE GRIEVANTS' POSITIONS PROVIDES THAT EIGHTY
 PERCENT OF THE WORK CONSISTS OF SPRAY PAINTING AND REFERS TO THE
 "UNPLEASANT WORKING CONDITIONS," AND THAT THE "JOB GRADING STANDARD"
 ISSUED BY THE CIVIL SERVICE COMMISSION FOR THESE JOBS NOTES THAT "DIRT,
 SPRAY, AND FUMES ARE USUALLY PRESENT." THEREFORE, THE ARBITRATOR
 CONCLUDED, THE GRIEVANTS' WORK (EXCEPT FOR PAINTING IN TANKS OR SIMILAR
 CONFINED AREAS FOR WHICH ENVIRONMENTAL DIFFERENTIAL IS STILL PAID)
 SUBJECTS THEM ONLY TO "SOIL OF BODY OR CLOTHING" WHICH IS "NORMALLY TO
 BE EXPECTED (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE) SIMILAR WORK WAS
 NOT BINDING, SINCE SUCH PRACTICE WAS CONTRARY TO THE FEDERAL PERSONNEL
 MANUAL, THE LANGUAGE OF WHICH WAS INCORPORATED INTO THE PARTIES'
 AGREEMENT BY ARTICLE 13.  THE ARBITRATOR CONCLUDED THAT THERE WAS NO
 BASIS UNDER THE AGREEMENT OR THE FPM FOR THE PAYMENT OF THE
 ENVIRONMENTAL DIFFERENTIAL TO THE GRIEVANTS FOR THEIR USUAL WORK IN
 PAINTING THE EXTERIOR OR INTERIOR OF SHIPS, EXCEPT WHEN THEY ARE ENGAGED
 IN DUTIES WHICH ARE NOT AN INHERENT PART OF THE JOB SUCH AS PAINTING IN
 TANKS, SEA CHESTS OR BILGES.  THE ARBITRATOR, THEREFORE, DENIED THE
 GRIEVANCE.
 
    THE UNION REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF THE ARBITRATOR'S AWARD ON THE BASIS OF THE FOUR EXCEPTIONS DISCUSSED
 BELOW.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED. REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTIONS
 TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW,
 APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS SIMILAR TO THOSE
 UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
 REFUSAL TO ACKNOWLEDGE THE LEGAL SIGNIFICANCE OF PAST PRACTICE IN A
 COLLECTIVE BARGAINING AGREEMENT AND AS A MATTER OF LAW IS ERRONEOUS IN
 LIGHT OF THE FPM REGULATIONS THAT ALLOW THE NEGOTIATION OF AUTHORIZED
 WORK SITUATIONS.
 
    THE UNION'S FIRST EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE
 AUTHORITY WILL GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION
 2411.32.  THAT IS, THE EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH
 REVIEW HAS PREVIOUSLY BEEN GRANTED IN THE FEDERAL SECTOR NOR DOES IT
 APPEAR SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION
 AWARDS ARE SUSTAINED BY COURTS IN PRIVATE SECTOR CASES.  THE UNION CITES
 NO PRIVATE SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION TO BE A
 GROUND FOR REVIEW OF ARBITRATION AWARDS NOR HAS OUR RESEARCH DISCLOSED
 ANY SUCH CASES.  ACCORDINGLY, THE UNION'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE RULES
 OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
 FPM SUPPLEMENT 532-1.  IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS
 THAT THE ARBITRATOR ERRONEOUSLY CONSTRUED THE APPLICABLE LANGUAGE AND
 CRITERIA OF PROVISIONS OF SUBCHAPTER S8 OF FPM SUPPLEMENT 532-1 /2/ AND
 FAILED TO CONSIDER PRIOR RELEVANT DECISIONS OF THE FEDERAL LABOR
 RELATIONS COUNCIL, ALL REGARDING THE DELEGATION TO LOCAL DETERMINATION
 SPECIFIC SITUATIONS FOR WHICH ENVIRONMENTAL DIFFERENTIAL IS PAYABLE.
 (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE)
 
    APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE
 PETITION, THAT AN AWARD VIOLATES AN APPROPRIATE REGULATION.  IN THIS
 CASE, HOWEVER, THE UNION'SPETITION DOES NOT CONTAIN A DESCRIPTION OF
 FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.  THUS, FPM SUPPLEMENT
 532-1, AS NOTED BY THE UNION, PROVIDES FOR THE COLLECTIVE BARGAINING
 PROCESS AS ONE SPECIFIC MEANS OF LOCALLY DETERMINING WHETHER A
 PARTICULAR DISPUTED LOCAL WORK SITUATION WARRANTS PAYMENT OF AN
 ENVIRONMENTAL DIFFERENTIAL.  IN THIS CASE THE ARBITRATOR, IN ANSWER TO
 THE QUESTION OF WHETHER PAINTERS WERE ENTITLED TO RECEIVE ENVIRONMENTAL
 DIFFERENTIAL PAY BECAUSE OF THE CONDITIONS UNDER WHICH THEY WORK-- A
 DISPUTED LOCAL WORK SITUATION-- DETERMINED THAT THERE WAS NO BASIS
 "UNDER THE CLEAR TERMS OF THE AGREEMENT OR THE FPM" FOR THE PAYMENT OF
 THE ENVIRONMENTAL DIFFERENTIAL.  SINCE, AS INDICATED, UNDER THE FPM
 THERE HAS BEEN DELEGATED TO LOCAL DETERMINATION SPECIFIC SITUATIONS FOR
 WHICH AN ENVIRONMENTAL DIFFERENTIAL IS PAYABLE, AND SINCE SUCH A
 DETERMINATION WAS MADE BY THE ARBITRATOR IN THIS CASE IN ANSWER TO THE
 ISSUE BEFORE HIM, THE UNION'S PETITION FAILS TO PRESENT THE NECESSARY
 FACTS AND CIRCUMSTANCES IN SUPPORT OF ITS EXCEPTION THAT THIS AWARD
 VIOLATES THE FPM.  THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR
 ACCEPTANCE OF THE UNION'S PETITION UNDER THE RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY.  IN THIS REGARD, THE UNION ASSERTS THAT THE
 ARBITRATOR MADE A DETERMINATION AS TO WHICH SITUATIONS WOULD BE PAID
 ENVIRONMENTAL DIFFERENTIAL PAY ALTHOUGH THIS WAS PREVIOUSLY NEGOTIATED
 BY THE PARTIES AND THAT HE "FAILED TO REQUIRE (THE ACTIVITY) TO HONOR
 ITS COLLECTIVE BARGAINING AGREEMENT."
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
 EXCEEDED HIS OR HER AUTHORITY.  E.G., CHARLESTON NAVAL SHIPYARD AND
 FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON (WILLIAMS,
 ARBITRATOR), 3 FLRC 415 (FLRC 75A-7 (JUNE 26, 1975), REPORT NO. 76).  IN
 THIS CASE, HOWEVER, THE UNION'S PETITION DOES NOT DESCRIBE FACTS AND
 CIRCUMSTANCES TO DEMONSTRATE IN WHAT MANNER THE ARBITRATOR, FACED WITH
 THE ISSUE OF "WHETHER THE PAINTERS . . . ARE ENTITLED TO RECEIVE
 'ENVIRONMENTAL PAY' . . .  BECAUSE OF THE CONDITIONS UNDER WHICH THEY
 WORK WHEN SPRAY PAINTING," EXCEEDED HIS AUTHORITY BY ANSWERING THAT VERY
 QUESTION.  IT APPEARS, RATHER, THAT THE UNION IS SIMPLY DISAGREEING WITH
 THE ARBITRATOR'S INTERPRETATION OF THE PARTIES' AGREEMENT AND WITH HIS
 RESULTING DISPOSITION OF THE GRIEVANCE.  IN THIS RESPECT, IT IS WELL
 ESTABLISHED UNDER THE ORDER THAT THE INTERPRETATION OF PROVISIONS IN A
 NEGOTIATED AGREEMENT IS A MATTER TO BE LEFT TO THE ARBITRATOR'S
 JUDGEMENT.  E.G., PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND
 FEDERAL AVIATION ADMINISTRATION, OMAHA, NEBRASKA (MOORE, ARBITRATOR), 5
 FLRC 685 (FLRC 77A-35 (AUG. 2, 1977), REPORT NO. 132).  CONSEQUENTLY,
 THIS EXCEPTION PROVIDES NO BASIS UPON WHICH TO ACCEPT THE UNION'S
 PETITION FOR REVIEW UNDER THE RULES OF PROCEDURE.
 
    IN ITS FOURTH EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR ERRED
 IN NOT FINDING A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER
 BECAUSE OF THE UNILATERAL RESTRAINT AND COERCIVE EFFECT ON EMPLOYEES OF
 THE AGENCY'S ACTIONS AND ITS REFUSAL TO BARGAIN IN GOOD FAITH.  IT IS
 WELL ESTABLISHED UNDER THE ORDER THAT A CONTENTION THAT AN ARBITRATOR
 HAS FAILED TO DECIDE, DURING THE COURSE OF A GRIEVANCE ARBITRATION
 PROCEEDING, WHETHER AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED UNDER
 SECTION 19 OF THE ORDER, DOES NOT PRESENT A GROUND UPON WHICH A PETITION
 FOR REVIEW OF AN ARBITRATION AWARD WILL BE ACCEPTED.  E.G., THE NATIONAL
 LABOR RELATIONS BOARD UNION (NLRBU) AND THE NATIONAL LABOR RELATIONS
 BOARD (NLRB) (SINICROPI, ARBITRATOR), 5 FLRC 764 (FLRC 77A-23 (AUG. 25,
 1977), REPORT NO. 135).  CONSEQUENTLY, THE UNION'S FOURTH EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
 OF THE RULES OF PROCEDURE.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  A. JONES
 
    NORFOLK NAVAL SHIPYARD
 
    /1/ THE ARBITRATOR SET FORTH AS RELEVANT ARTICLE 13 OF THE PARTIES'
 AGREEMENT, WHICH ARTICLE PERTINENTLY PROVIDES THAT AN EMPLOYEE SHALL
 RECEIVE ENVIRONMENTAL DIFFERENTIAL PAY FOR "DIRTY WORK" WHEN HE IS:
 
    PERFORMING WORK WHICH SUBJECTS THE EMPLOYEE TO SOIL OF BODY OR
 CLOTHING:
 
    (1) BEYOND THAT NORMALLY TO BE EXPECTED IN PERFORMING DUTIES OF THE
 CLASSIFICATION;  AND
 
    (2) WHERE THE CONDITION IS NOT ADEQUATELY ALLEVIATED BY THE
 MECHANICAL EQUIPMENT OR
 
    PROTECTIVE DEVICES BEING USED, OR WHICH ARE READILY AVAILABLE, OR
 WHEN SUCH DEVICES ARE NOT
 
    FEASIBLE FOR USE DUE TO HEALTH CONSIDERATIONS (EXCESSIVE TEMPERATURE,
 ASTHMATIC CONDITIONS,
 
    ETC.);  OR
 
    (3) WHEN THE USE OF MECHANICAL EQUIPMENT, OR PROTECTIVE DEVICES, OR
 PROTECTIVE CLOTHING
 
    RESULTS IN AN UNUSUAL DEGREE OF DISCOMFORT.  WHEN CONDITIONS ARE SUCH
 THAT PROTECTIVE CLOTHING
 
    DOES NOT PREVENT SOIL OF THE BODY AND PERSONAL CLOTHING, DIRTY PAY IS
 CONSIDERED
 
    APPROPRIATE.  WHEN THE CONDITIONS SET FORTH ABOVE ARE SATISFIED THE
 WORK LISTED BELOW SHALL BE
 
    PAID.
 
    CONFINED SPACE IS DEFINED AS AN AREA WITH RESTRICTED OR DIFFICULT
 ACCESS, BOUND BY SOLID
 
    WALLS, PARTITIONS OR BARRIERS ON FOUR OR MORE SIDES SUCH THAT THE AIR
 QUALITY IS SIGNIFICANTLY
 
    DEGRADED BY EXCESSIVE DIRT, OR FUMES DUE TO THE APPLICATION OR
 REMOVAL OF SURFACE COVERING
 
    SUCH AS PAINT, LIME, CEMENT WORK, CHROME ORE, OR BITUMINOUS
 COMPOSITION.
 
    CLOSE PROXIMITY IS DENIED AS WORKING WITHIN A MAXIMUM RADIUS OF 15
 FEET OF AN ASSIGNED WORK
 
    OPERATION WHICH CAUSES EXCESSIVE DUST OR DIRT AND SUBJECTS THE
 EMPLOYEE TO SOIL OF BODY AND/OR
 
    CLOTHING BEYOND THAT NORMALLY TO BE EXPECTED IN PERFORMING THE DUTIES
 OF HIS TRADE.
 
    /2/ FPM SUPPLEMENT 532-1 PROVIDES, PERTINENTLY:
 
    S8-7.  ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS
 DEGREES OF HAZARDS,
 
    PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY SEVERE
 NATURE
 
   .          .          .          .
 
 
    D.  AUTHORIZATION FOR PAY FOR ENVIRONMENTAL DIFFERENTIAL.
 
   .          .          .          .
 
 
    SOME OF THE ENVIRONMENTAL DIFFERENTIALS LISTED IN APPENDIX J ARE
 PAYABLE WHENEVER THE
 
    CRITERIA IN THE CATEGORY DEFINITION ARE MET.  OTHERS ARE PAYABLE ONLY
 IF PROTECTIVE
 
    FACILITIES, DEVICES, OR CLOTHING HAVE NOT PRACTICALLY ELIMINATED THE
 HAZARD, PHYSICAL
 
    HARDSHIP, OR WORKING CONDITION OF AN UNUSUALLY SEVERE NATURE.
 CONSISTENT WITH SECTION
 
    S8-7G(3) BELOW, DETERMINATIONS IN THIS REGARD MAY BE MADE THROUGH
 NEGOTIATIONS AT THE LOCAL
 
    LEVEL.
 
   .          .          .          .
 
 
    G.(3) NOTHING IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS THROUGH THE
 COLLECTIVE BARGAINING
 
    PROCESS FOR:
 
    (A) DETERMINING THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
 APPROPRIATE CATEGORIES IN
 
    APPENDIX J AND APPLICATION OF APPENDIX J CATEGORIES TO LOCAL WORK
 SITUATIONS.  FOR EXAMPLE,
 
    LOCAL NEGOTIATIONS MAY BE USED TO DETERMINE WHETHER A LOCAL WORK
 SITUATION IS COVERED UNDER AN
 
    APPROVED CATEGORY, EVEN THOUGH THE WORK SITUATION MAY NOT BE
 DESCRIBED UNDER A SPECIFIC
 
    ILLUSTRATIVE EXAMPLE.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.